property. O. L. 13:

Nieman v. Fangboner.

The fact is found in Sec. 2792, Rev. Stat., as amended in 88

"Each separate parcel of real property shall be valued at its true value in money, excluding the value of the crops growing thereon; but the price for which such real property would sell at auction, or at forced sale, shall not be taken as the criterion of the true value, and where the fee of the soil of any tract, parcel or lot of land, is in any person or persons, natural or artificial, and the right to any minerals therein in another, or others, the same shall be valued and listed agreeably to such ownership, in separate entries, specifying the interests listed, and shall be taxed to the parties owning different interests respectively."

That is to say, the land is returned at its value, and the oil wells are to be listed at their value :

"Provided the assessor shall deduct from the value of any such tracts of land lying outside of municipal corporations, the amount of land occupied and used by a canal, or used as a public highway at the time of such assessment, and if the assessor fails to do so, the county auditor is hereby authorized to make the deductions as herein provided; and provided further, that the annual board of equalization may reduce the mineral value assessed against lands containing or producing petroleum (oil), natural gas, coal or limestone, fire-clay or other minerals, in proportion as the product of such mineral has diminished (now comes the clause upon which it says the board has acted in this matter), if such mineral product was considered as a part of the value of said real estate in its previous appraisement for taxation, and annual assessors or boards of equalization may assess such mineral values as developments of its product or existence are made."

That is to say, if the productions are increased, the board may increase the amount of the value upon the duplicate. When the assessment is made, it stands the same as the assessment of real estate or other property, and is subject to taxation in the same manner as taxes are levied and assessed upon other property generally. By the laws of Ohio, certain bodies, commencing with officers of the state, assess or fix the rate to be assessed for certain purposes upon taxable property in the state of Ohio. The board of county commissioners may make assessments and fix the rate of taxation that is to be upon the property in the county; that is to say, upon the value that is placed upon the duplicate, and these amounts are fixed for exclusive purposes, for purposes of the state, for purposes of school, county and township purposes, and for the various purposes for which money is raised by taxation, and we assume under this allegation, that inasmuch as the money has been raised in accordance with this section of the statuted, that it has been raised by the board of equalization, fixing the value of these oil wells, and then the county auditor assesses upon such values the various rates of taxation, which he is authorized to assess under the laws, which rates have been fixed by the various public authorities. So this sum of $2,318.67 represents, in fact, the moneys that have been collected by the treasurer for the various purposes for which money is raised in the state, and that the aggregate amount is $2,318.67.

The constitution of the state of Ohio under Art. 12, provides for levying taxes in the state. Section 5 of that article reads as follows:

"No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied."

Sandusky Circuit Court.

Now, this money being raised and paid into the treasury, under the general laws of the state, is to be paid out to the various treasurers and officers for the various purposes for which it has been assessed and collected. But this local law comes in and provides that this money, which was so raised for specific and definite purposes, shall be diverted from these purposes, and shall be paid over to the treasurer of the township up to a certain amount, and shall be used by them exclusively for the purpose of repairing roads, for road purposes; and the question is, whether this act is in violation of the constitution of the state of Ohio.

We have given this matter careful attention, because it is a question of importance to the townships interested. We are unable to see how we can sustain this act. Clearly it requires the treasurer to take these moneys that are raised for other specific purposes, and which the constitution especially says shall be applied to no other purposes whatever, and applies them to another purpose, to-wit: repairing of roads in different townships; and it seems to us so clear that that is a violation of this clause of the constitution that there can be no question whatever, that the law should be declared to be unconstitutional.

We have been cited to State v. Pohling, 1 Circ. Dec. 271 (1 R. 486), a case that has been decided in Allen county. In that case, an act of the legislature attempted to authorize the use of certain moneys that were collected for road purposes in the limits of the city of Lima. The case came up before the third circuit court, in Allen county, and they held that the law was unconstitutional. We are cited in 17 Bull. 60, to the fact that the case was taken to the Supreme Court of the state, and by the Supreme Court reversed without any report whatever, so that the decision of that court throws no light whatever upon the correctness of the decision as to the law being contrary to the constitution as we think, and for the reason that the case might have been decided upon other points without discussing the constitutionality of the question in any manner or form. We can hardly conceive that the Supreme Court of Ohio, if passing upon the constitutionality of a law of this kind, would have made a decision of the case without full report, except it had been decided upon some collateral point.

It appears that there was a tax of three and one-half mills in Allen county for road purposes. It was said that it was intended to be levied under Sec. 4919, Rev. Stat., which provides that where roads have been damaged or destroyed or injured, that in addition to the taxes that may be levied for ordinary road purposes, there might be levied an addition of five mills on the dollar upon all taxable property of the county, to be expended by the commissioners in such manner as might seem to them most advantageous to the interest of the county for the construction, reconstruction or repair of such road or roads. The report says, that the commissioners never found any roads damaged or destroyed so as to render the same unfit for travel. It simply states on the face of the papers, that there had been a levy of three and one-half mills on the dollar in Allen county.

The act in question provided that money that was raised on property in the city of Lima should be expended in the city of Lima by the city authorities. We may suppose the case was decided as if the whole tax was raised for general and not specific road purposes, and until the Supreme Court have made a decision, and published it, stating the questions decided, we do not think we ought to attempt to follow it as

Nieman v. Fangboner.

authority upon the question before us, for the reason that I have stated that it might have been decided upon collateral points. It follows from what I have said, that the writ of mandamus must be refused and the petition dismissed.

RAILROADS-HIGHWAYS.

[Lorain Circuit Court, October Term, 1891.]

Upson, Caldwell and Baldwin, JJ.

LORAIN CO. (COMRS.) V. LAKE SHORE & MICHIGAN SOUTHERN RAIL

WAY CO.

1. CHANGE OF RAILROAD Grade-NECESSITY.

No judicial determination is necessary to authorize railroad companies to change grade to avoid difficult or dangerous grades or curves, under Sec. 3277, Rev. Stat., it being presumed that railroad companies would not make such expensive changes unless they were necessary; but where it is necessary to appropriate land for the purpose, under Sec. 3278, Rev. Stat., proof should be made and the court should determine the necessity of the change.

2. WORD "CONSTRUCTION," IN SEC. 3284, REV. STAT., Construed.

The word "construction," in Sec. 3284, Rev. Stat., providing that a railroad company in the construction of its roadbed may divert a road or stream of water when necessary, is not limited to the original building of the railroad, but gives the right to divert a road from its location in making the change of grade authorized by Sec. 3277, Rev. Stat., to avoid annoyance to the public and dangerous and difficult curves or grades.

HEARD ON ERROR.

A. R. Webber, prosecuting attorney, for the commissioners.
J. M. Lemmon, for the railway company.

Beginning in the spring of 1889, the Lake Shore and Michigan Southern Railway Company began making very extensive improvements in its roadway between Berea, in Cuyahoga county, and Toledo, in Lucas county, Ohio. Prior to that time the grade of the road had been very irregular. In making these improvements it became necessary at some points to raise high embankments of earth and at others to deepen the cuts so as to bring the roadway nearer to a uniform grade.

In making these improvements a high embankment was built across a county road running east and west in Brownhelm township, so as to entirely obstruct travel over the same. This embankment was built across the road about thirty rods east of its junction with a north and south road. The railway company, instead of building approaches to this embankment on either side, so that teams might pass over it, bought a strip of land and constructed a highway along the north side of its track until it intersected the north and south road above referred to, about twenty rods north of the intersection of the old road. This resulted in an abandonment of about thirty rods of the old highway.

The above action was brought by the commissioners against the railway company to recover damages because of the obstruction so placed in the road, on the claim that its usefulness had been entirely destroyed. The railway company filed an answer setting forth in substance that the changes made were necessary for the purpose of avoid

Lorain Circuit Court.

ing difficult and dangerous grades; that in pursuance of the right con ferred upon it by Sec. 3277, Rev. Stat., did raise the grade at the point named so as to entirely obstruct the highway; but that it had restored the same to its former usefulness by the construction of the road hereinbefore described.

The case was tried in the common pleas court, resulting in a judgment for the railway company. It was taken to the circuit court upon petition in error and a bill of exceptions containing all the testimony.

UPSON, J.

This case was submitted to the court below without a jury and decided by the court in favor of the defendant, a judgment was rendered and it is to reverse the judgment thus rendered, that this proceeding in error is prosecuted. The bill of exceptions taken in the case sets forth the whole of the testimony and it is claimed among other things that the decision of the court is not sustained by sufficient testimony.

The first point that is made with reference to the testimony is that it does not show that the railway company determined to raise this grade at the point named, or that it was necessary that it should be raised for the purpose of avoiding dangerous and difficult grades or annoyance to the public. The provision of the statute with reference to such change of grade is found in Sec. 3277, Rev. Stat., and is as follows:

"For the purpose of avciding annoyance to public travel, or dangerous or difficult curves or grades, or unsafe or unsubstantial grounds or foundations, or when the roadbed has been injured or destroyed by the current of any river, water-course, or other unavoidable cause, or for other reasonable cause, a company may change the location or grade of any portion of its road, whether heretofore made or hereafter to be made, but shall not depart from the general route prescribed in the articles of incorporation."

In a succeeding section (3278, Rev. Stat.) it is provided that for the purpose of making any such change, the company shall have all the rights, powers and privileges to enter upon and appropriate lands, etc., and provides that such appropriation shall be made in the usual manner in the probate court.

It will be observed that in Sec. 3277, Rev. Stat., authorizing the railroad company to make a change of its grade for the purposes stated, there is no provision for any judicial determination as to the necessity for such change of grade. It is left by the law to the judgment and discretion of the railroad company itself to determine whether such a change of grade is or is not necessary, it being properly presumed that an expensive change of grade would not be made by the company unless it, in good faith, deemed it to be necessary for such purpose as that stated in the statute, and we think the whole of the testimony in this case shows such a state of facts as warranted the judge before whom the case was tried in finding that this change of grade was made for the purposes stated in the statute, If it had been necessary for the purposes of the change to appropriate land, then the rights of the land owner would have required and the statute, Sec. 3278, Rev. Stat., would have required that there should be proof made and judicial determination made of the necessity of the proposed change.

Commissioners v. Railway Co.

The next point in which it is claimed the testimony set forth in the bill of exceptions does not sustain the decision of the court, and the more important question, is that it does not sustain it in showing that the company has restored the highway to its former state of usefulness to the public. We have very carefully examined the testimony in that respect and under the rule well established in this state, that the decision of a court upon an issue of fact, as well as the verdict of a jury upon an issue of fact, is not to be set aside by a reviewing court unless it is clearly against the evidence, we think that we are not authorized to set aside this finding upon the ground that it is not sustained by the testimony; we think the court could fairly find from the testimony, which is conflicting, that the part of the highway substituted for that which was closed by this railroad company is as beneficial, if not more beneficial, to the public than the highway was originally at that point. We do not feel authorized in disturbing the decision of the court. The more important question and the one mainly relied upon is whether the statute itselt confers authority in a case like this to divert a road from its course.

Section 3284, Rev. Stat., provides: "A company may, whenever it is necessary in the construction of its road to cross a road or a stream of water, divert the same from its location or bed; but the company shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness, and any or all railroads hereafter constructed, which shall cross any avenue or public highway leading from a city of the first or second class to a public cemetery of such city, situate within or without the limits of any such city, shall be con`structed so as either to pass under or over such avenue or public highway, at such elevation or depression, as the case may be, as will allow the unobstructed passage of all wagons, carriages, or other vehicles which it may be necessary for any person to use upon such avenue or public highway."

The argument made is that this can only be done when it is necessary in the original construction of the road; that after a railroad has been constructed and has been in operation for a great number of years, this section of the statute does not apply and that in order to authorize a diversion of a road, from its location, it is necessary for it either to procure additional legislation or it is necessary for the company to proceed under these provisions of the statute which relate to the occupation of roads and streets by agreement between the railroad company and the public authorities having charge of the road, in a municipal corporation having charge of the streets, or commissioners having charge of a county road.

The statute, as has been seen, gives the absolute right to change the grade and to do that without a judicial determination of the necessity to do so. And while the language of the statute is that a road may be diverted whenever it is necessary in the construction of the road, it is claimed on the part of the railroad company that such a change of grade as this is a work done in the construction of its road; that it is not simply what comes under the ordinary name of repairing the road or making a slight change, but that it is fairly to be considered as work done in the construction of the road, that it is not limited to the original building of the road but to a construction such as was done in this case. It is shown by the record to have been a change in the grade of the road of a very extensive character so as to make it entirely different in many respects from what it was when originally constructed.